Ferdinand and Ferdinand and Anor - [2010] FMCAfam 465

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FERDINAND & FERDINAND & ANOR

[2010] FMCAfam 465

FAMILY LAW – Property dispute – alleged debts to husband’s mother (the intervenor) – intervenor incapacitated and affairs conducted by lawyers appointed by VCAT – intervenor filing affidavit but not available for cross-examination – husband allegedly violent and/or controlling – Kennon case – consideration of competing claims of intervenor and parties.

Family Law Act 1975, s.106

Kennon v Kennon (1997) FLC 92-757
Biltoft & Biltoft (1995) FLC 92-614
Worsnop v Worsnop (No 2) [2007] FamCA 1315

Applicant:

MS FERDINAND

Respondent:

MR FERDINAND

Intervenor:

MS F

File Number:

MLC 13479 of 2007

Judgment of:

Burchardt FM

Hearing dates:

1, 26 & 29 March 2010

Date of Last Submission:

29 March 2010

Delivered at:

Melbourne

Delivered on:

18 May 2010

REPRESENTATION

Counsel for the Applicant:

Mr P. Harris

Solicitors for the Applicant:

McNab McNab & Starke

Counsel for the Respondent:

Mr R. Sorensen

Solicitors for the Respondent:

Mendis & Gibson Lawyers

Counsel for the Intervenor:

Ms E. Goldberg

Solicitors for the Intervenor:

Septimus Jones & Lee

ORDERS

Sale of the Former Matrimonial Home

Failing agreement within 30 days between the parties the former matrimonial home situate at and known as Property S be sold at public auction with the vendors’ agent to be agreed between the parties or failing agreement to be appointed by the President of the Real Estate Institute of Victoria and the proceeds thereof be applied:
(a)first to discharge any costs and commissions of sale; and
(b)second, the remainder be paid:
(i)as to 20% to Messrs FTL Judge & Papalao Pty Ltd for and on behalf of Ms F;
(ii)30% to the husband; and
(iii)50% to the wife.

Removal of Caveats

Any party having registered a caveat in respect of the property is required forthwith to remove same at their own expense and in the event of default within 14 days the Registrar of this Court is authorised pursuant to s.106 of the Family Law Act 1975 (“the Act”) to execute and obtain discharge of the same.

Superannuation and Chattels

Each party is to retain to the exclusion of the other any interest they may have in any superannuation fund or scheme in which they are presently a party.
The wife is to retain all chattels situated in the former matrimonial home.
The husband is to retain all chattels contained in the garage adjoining the former matrimonial home.

Collection of Chattels from the Garage

The husband is not permitted to enter onto the former matrimonial home including the garage. To the extent that he may wish to remove the chattels situated in the garage he is to nominate by his solicitor a reasonable time for the collection of same by third party agents. The wife is not unreasonably to refuse the third party agents access to the garage.
The wife is not permitted to enter the garage attached to the former matrimonial home save that in the event that the husband does not cause the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCAfam 465
Decision Date: 18 May 2010

CaseChat Overview and Summary

In the case of Ferdinand and Ferdinand and Anor, the court addressed the distribution of assets following a matrimonial dispute. The primary issue was the sale of the former matrimonial home and the distribution of its proceeds, along with the removal of caveats and the division of personal belongings. The court was required to decide on the equitable distribution of the property's sale proceeds and the respective rights of the parties to their personal belongings.

The court ordered the sale of the former matrimonial home, with specific instructions on the distribution of the proceeds. If the parties could not agree on the sale terms, the sale would proceed at public auction, with the proceeds divided among the parties in specific percentages. The court also mandated the removal of any caveats registered against the property and provided for the retention of superannuation funds and personal belongings by each party. Additionally, the court ruled on the collection of chattels from the garage, prohibiting the husband from entering the property to retrieve his belongings and instead requiring him to arrange for a third party to collect them. The court further allowed the wife to dispose of the husband's belongings if they were not collected within a specified timeframe.

The final orders included the sale of the former matrimonial home with proceeds distributed among the parties, removal of any caveats, retention of personal superannuation funds and chattels by each party, and specific instructions for the collection of chattels from the garage. The court granted liberty to apply for further orders regarding the implementation of these orders and any issues concerning the remaining chattels within the former matrimonial home.

Orders

Orders of the court

Sale of the Former Matrimonial Home

Failing agreement within 30 days between the parties the former matrimonial home situate at and known as Property S be sold at public auction with the vendors’ agent to be agreed between the parties or failing agreement to be appointed by the President of the Real Estate Institute of Victoria and the proceeds thereof be applied:

(a) first to discharge any costs and commissions of sale; and

(b) second, the remainder be paid:

(i) as to 20% to Messrs FTL Judge & Papalao Pty Ltd for and on behalf of Ms F;

(ii) 30% to the husband; and

(iii) 50% to the wife.

Removal of Caveats

Any party having registered a caveat in respect of the property is required forthwith to remove same at their own expense and in the event of default within 14 days the Registrar of this Court is authorised pursuant to s.106 of the Family Law Act 1975 (“the Act”) to execute and obtain discharge of the same.

Superannuation and Chattels

Each party is to retain to the exclusion of the other any interest they may have in any superannuation fund or scheme in which they are presently a party.

The wife is to retain all chattels situated in the former matrimonial home.

The husband is to retain all chattels contained in the garage adjoining the former matrimonial home.

Collection of Chattels from the Garage

The husband is not permitted to enter onto the former matrimonial home including the garage. To the extent that he may wish to remove the chattels situated in the garage he is to nominate by his solicitor a reasonable time for the collection of same by third party agents. The wife is not unreasonably to refuse the third party agents access to the garage.

The wife is not permitted to enter the garage attached to the former matrimonial home save that in the event that the husband does not cause the chattels in the garage to be collected within 60 days of these orders the wife is at liberty to dispose of the same by whatever means and in whatever fashion she may choose.

Final Disposition

To the extent not otherwise provided each party is to retain for their own benefit to the exclusion of the other any chattels, choses-in-action or other matters presently within their possession.

Liberty to apply in respect of the implementation of these and any further issues as to chattels in the former matrimonial home. Any issue regarding chattels is to be notified to the other party within 14 days of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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